"No loyalty to the appointing party": what you need to know about the selection and appointment of an arbitrator
Key points
- An arbitrator nominated by a party does not represent that party and is not obliged to support its position.
- Nomination of a candidate does not always mean appointment: in institutional arbitration the candidate may be subject to confirmation by the arbitral institution.
- Before nomination, a party should check the candidate's qualifications and availability, professional connections, previous appointments and public statements.
- An arbitrator must disclose circumstances capable of giving rise to justifiable doubts as to his or her independence or impartiality.
- Public comments on the dispute may become grounds for challenging an arbitrator and, after the award is issued, for setting it aside.
The procedure for appointing arbitrators depends on the arbitration agreement, the applicable rules and the law of the seat of arbitration. Where three arbitrators hear a dispute, each party nominates one arbitrator, and the presiding arbitrator is appointed by the two party-appointed arbitrators or by the institution.
Experience and specialisation are therefore not the only factors that matter when choosing an arbitrator. Before making a nomination, a party should check the candidate's availability, professional connections and previous appointments.
The independent status of an arbitrator also explains why he or she refrains from public comment. The circumstances of the case, the evidence and the parties' positions must be discussed within the tribunal.
1. How an arbitrator is appointed
The procedure for constituting a tribunal is shaped by the parties' agreement, the applicable arbitration rules and the law of the seat of arbitration. The parties are free to agree on the method of appointment, including the number of arbitrators and the way in which they are chosen.
The status of an arbitrator arises in connection with a specific proceeding. Being listed as an arbitrator or sitting in other cases does not by itself give a lawyer a full-time appointment or guarantee future engagement.
- What is the difference between nomination and appointment?
A distinction should be drawn between nomination and appointment. Nomination means that a party proposes a candidate. In institutional arbitration the candidate may be subject to subsequent confirmation by the institution.
For example, under the ICC Rules 2026 the candidate proposed by a party may be confirmed or declined by the Court. Nomination by a party therefore does not by itself guarantee that the candidate will be included in the tribunal.
2. Who appoints an arbitrator if a party has not done so
The refusal of one party to take part in constituting the tribunal should not block the proceedings.
If a party fails to nominate a candidate within the time limit, or the co-arbitrators cannot agree on the presiding arbitrator, the appointment is made by the body designated in the agreement.
Under the ICC Rules 2026, the ICC Court appoints an arbitrator in place of a party that has not put forward a candidate in time, and in a multi-party dispute it may likewise appoint the arbitrators where the parties cannot agree on a joint nomination.
In ad hoc arbitration the same function is performed by an appointing authority. Under the UNCITRAL Arbitration Rules the appointing authority likewise makes the appointment where the parties' mechanism fails.
3. How to choose an arbitrator and what to check before nomination
The choice of arbitrator affects the procedure, the timetable and the quality of the eventual award. An unsuitable candidate may lead to a challenge, the replacement of the arbitrator and a rehearing of part of the case.
The candidate's experience and knowledge of the applicable law and the relevant industry are assessed first. It is also important to establish whether the candidate can conduct the case in the language of the arbitration and within the required time frame.
Possible conflicts of interest are checked separately. This involves reviewing the candidate's professional connections, previous appointments and involvement in related cases.
- Can a candidate for arbitrator be interviewed?
Before nomination, an interview with the candidate is permitted. The candidate's experience, availability and possible conflicts may be discussed. His or her views on the substance of the dispute should not be sought.
A preliminary check helps to avoid objections to the candidate and reduces the risk of a challenge once the tribunal has been constituted.
4. Independence of the arbitrator and disclosure of conflicts
A candidate is obliged to disclose circumstances capable of giving rise to justifiable doubts as to his or her independence or impartiality.
Disclosure of a possible conflict does not mean that the candidate automatically loses the right to be appointed. The parties and the institution assess the nature of the connection and its relevance to the dispute.
The duty of disclosure continues throughout the proceedings. If a new circumstance arises after appointment and may affect the assessment of independence, the arbitrator must disclose it without delay.
This approach is reflected, in particular, in section 23A of the UK Arbitration Act 1996, which imposes a continuing duty of disclosure.
Incomplete disclosure may lead to a challenge and may later be relied upon to set aside the award.
5. Halliburton v Chubb
«In English law, arbitrators were under a duty to act independently and impartially and owed no allegiance to the party which appointed them».
Halliburton v Chubb [2020] UKSC 48, § 29.
In Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48, the Supreme Court of the United Kingdom considered the disclosure obligations of a party-appointed arbitrator who held other appointments involving the same party or counsel.
The Supreme Court held that these appointments should have been disclosed. On all the circumstances, however, the Court did not find a real possibility of bias.
Practical conclusion: a breach of the duty of disclosure has independent significance, but not every undisclosed circumstance automatically leads to a challenge.
6. Does an arbitrator represent the party that appointed them
An arbitrator nominated by a party is not its representative. All members of the tribunal must remain independent and impartial regardless of who appointed them.
After appointment a party may not discuss the circumstances of the case separately with the arbitrator, submit arguments outside the established procedure or obtain information about the deliberations.
A party may choose a specialist familiar with the applicable law and the relevant industry. It should not, however, expect his or her support in deciding the dispute.
7. Why an arbitrator does not comment on the dispute
An arbitrator must not publicly discuss the circumstances of the pending case, the evidence, the parties' positions or the likely outcome. This restriction follows from several principles.
Impartiality
A public assessment of the claims or evidence may create the impression that the arbitrator has formed a view before the proceedings end. Conclusions must be based on the case materials.
No unilateral communication
An arbitrator does not discuss the dispute separately with one party or its representatives. Substantive issues are considered with the participation of all parties.
Secrecy of deliberations
An arbitrator does not disclose the content of the tribunal's deliberations, preliminary positions or the drafting of the award. Where a dissenting opinion is permitted, it is set out in the award.
Reasons must be given in the award
The tribunal's position is set out in procedural orders and the award. Interviews or publications cannot supplement the reasoning.
These restrictions may continue after the proceedings end. If the case materials remain confidential, the arbitrator may not disclose them without consent.
8. Can an arbitrator speak publicly on legal issues
An arbitrator may publish articles, teach and take part in professional discussion. A previously expressed opinion on a general question of law does not by itself cast doubt on impartiality.
The risk arises where a statement is directly connected with the pending dispute, a party's position or its possible outcome.
Particular caution is required on social media. Even a comment unrelated to a specific dispute may call impartiality into question.
9. Sun Yang v WADA
Illustrative is the decision of the Swiss Federal Tribunal in Sun Yang v WADA, 4A_318/2020.
After the Court of Arbitration for Sport issued an award disqualifying the Chinese swimmer Sun Yang, publications by the president of the panel on social media were discovered.
The Federal Tribunal found that the nature and wording of the publications objectively gave rise to doubts as to the arbitrator's impartiality. The award was set aside.
Practical conclusion: public statements are assessed in the context of the specific case. Freedom of expression does not exclude a challenge if the content of the publication creates justifiable doubts as to impartiality.
10. Challenge of an arbitrator and other consequences
If an arbitrator's conduct gives rise to justifiable doubts as to independence or impartiality, a party may challenge the arbitrator. The applicable rules normally set a time limit and a procedure for the challenge.
If the relevant circumstances are discovered after the award is issued, a party may rely on them in setting aside the award or resist its recognition and enforcement.
Not every undisclosed circumstance or careless statement, however, leads to a challenge or the setting aside of an award. An objective test applies: could the circumstances give rise to justifiable doubts?
For the parties this may mean replacing the arbitrator, rehearing certain procedural steps, additional costs and a longer dispute.
11. Checklist: what to check before choosing an arbitrator
Before nominating an arbitrator, a party should:
- Determine the requirements for the candidate's experience and qualifications.
- Check his or her availability for the expected timetable.
- Review previous appointments and professional connections.
- Check publications and public appearances.
- Identify possible conflicts of interest.
- Prepare permissible questions for a preliminary interview.
- Record the date on which information about a possible conflict was obtained.
The check does not end with appointment. New representatives, appointments or professional connections may require further disclosure.
12. Conclusion
The ability to take part in choosing arbitrators is one of the main advantages of arbitration. But after appointment the candidate becomes an independent member of the tribunal.
The choice of arbitrator therefore requires careful preliminary due diligence. A mistake at this stage may lead to a challenge, delay and risks for the future award.
